Bank v. Church

• Decision Date: 23 June 1891
• Citation: 28 N.E. 29,127 N.Y. 361
• Parties: COLUMBIA BANK v. GOSPEL TABERNACLE CHURCH.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 361

28 N.E. 29

COLUMBIA BANK

v.GOSPEL TABERNACLE CHURCH.

Court of Appeals of New York, Second Division.

June 23, 1891.

This is an appeal from a judgment of the general term of the superior court of the city of New York affirming a judgment entered upon the report of Hamilton Cole, Esq., referee, to whom was referred all the issues to hear and determine, dismissing the complaint on the merits. The cause of action stated in the complaint is substantially that the defendant, a religious corporation, was a sepositor in plaintiff bank, and kept an account therein, from which it drew out and deposited moneys arising from receipts of money by defendant, and proceeds of discounts for defendant, and that the defendant drew out an excess of $3,428.25 over its deposits; and, further, that the plaintiff on November 1, 1886, received from defendant a certain promissory note dated November 1, 1886, made by the Tribune & Farmer Company, Limited, for the sum of $3,500, at four months from its date; said note, when so received, was duly indorsed by said payee thereof, and by defendant, and was received by plaintiff as collateral security for such credits, loans, and advances, or for some of them, made as aforesaid to defendant; that plaintiff held said note until its maturity, when it was duly presented for payment, and payment demanded, but no part of the same was paid, and the same was duly protested,-of all of which defendant was duly notified. The plaintiff still holds said note, and offers to surrender the same to defendant. The demand is for judgment for $3,428.25, the amount of the alleged overdraft, and not for the amount of the note, with interest. The answer denies the material allegations constituting the liability, and, further, that said note and loans and discounts were without the authority and beyond the power of defendant, and were in fraud of defendant; of all of which plaintiff had notice. One Sniffen was the treasurer and one of the trustees of defendant. He, as such treasurer, opened the account, and had all the transactions with plaintiff out of which the liability of the defendant is claimed to have arisen. The referee finds that the defendant was not aware of the opening of the account, or of these transactions, and that they were unauthorized by the defendant. The referee, after an examination and consideration of the evidence, made full findings of fact, and held, as a conclusion of law, that the defendant was not liable, and dismissed the complaint upon the merits. Other facts will be found in the opinion.

Adolph L. Sanger and Louis Marshall, for appellant.

Edward S. Clinch, for respondent.

POTTER, J., ( after stating the facts as above.)

The plaintiff claims the right to treat the case as a question of law simply arising upon a judgment of nonsuit, and that, as there was some evidence of plaintiff's claim, it would have had the right to go to a jury, or, in the absence of a jury, to have the court or referee pass upon such evidence. The answer is that the plaintiff, by proposing and requesting findings, consented to and did in fact treat the case as one where the whole evidence was to be passed upon, and which was in fact passed upon, and findings made for plaintiff as well as defendant; and so the referee properly dismissed the case upon the merits. These facts appear from the case upon appeal: that, at the close of the examination and cross-examination of plaintiff's witness, the defendant's counsel moved for a nonsuit, which was granted, and an exception taken by plaintiff. It further appears that the referee proceeded to take the testimony and proofs offered, and having considered the same, and the arguments of counsel thereupon, etc., and that the plaintiff duly submitted to the referee the following, as to which he made the rulings as they respectively appear, ‘the plaintiff submits the following statement of the facts which it deems established by the evidence, and of the rulings upon questions of law which it requests the referee to make.’ The plaintiff prepared 26 findings of fact, a part of which were found, and the rest refused or were found as modified, and 4 findings or conclusions of law, and also took 28 exceptions to the findings of fact, and to the refusal to find the conclusions of law. It should be also stated that the defendant's counsel examined and cross-examined all the witnesses called by plaintiff, and some of them at great length, and among the witnesses so examined were some of the trustees and the pastor of the defendant. Under these circumstances, it seems to me that this court should treat this appeal as an appeal from a judgment upon the merits, as directed by the referee, and not as a judgment of nonsuit, and that the plaintiff's relief from having the judgment so treated was obtainable by a motion to correct the record in that respect.

The two cases relied upon by the appellant to support its contention in that regard are Scofield v. Hernandez, 47 N. Y. 313, and Forbes v. Chichester, 8 N. Y. Supp. 747, but they are in some essentials unlike the case at bar. Both cases were claims presented against the estates of decedents, and were referred under the statute. The proceedings in such cases are statutory and special. Roe v. Boyle, 81 N. Y. 305;Mowry v. Peet, 88 N. Y. 453. In the former case, (47 N. Y., supra,) the referee, at the close of plaintiff's or claimant's evidence, and upon motion of the defendant, granted a nonsuit, to which plaintiff duly excepted, and the referee afterwards made findings. It does not appear that the defendant or the plaintiff submitted or requested the referee to make any findings, or took any step in that direction. It moreover appears from the record that the case cited was a judgment of nonsuit, and not upon the merits. In the case of Forbes v. Chichester, supra, the defendant, at the close of plaintiff's case, made a motion for a nonsuit, and the referee reserved his decision. He then wrote an elaborate opinion based upon the plaintiff's evidence, at the conclusion of which he said: ‘I think the defendant's motion should be granted.’...